Univest Capital Inc v. Akiode Transitions MHT LLC et al

Filing 27

MEMORANDUM SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/6/17. 9/7/17 ENTERED AND COPIES MAILED TO UNREP, E-MAILED. (va, ) [Transferred from Pennsylvania Eastern on 9/8/2017.]

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNIVEST CAPITAL, INC.
Plaintiff,

:

v.

:

AKIODE TRANSITIONS MHT LLC;
OLADIMEJI AKIODE; and,
ASCENTIUM CAPITAL, LLC
Defendants.

CIVIL ACTION
NO. 17-1192

:

MEMORANDUM

Jones, II
I.

J.

September 6, 2017

Introduction
Currently pending before this Court are Defendant Akiode and Individual Physician

Defendants’ Motions to Dismiss and/or Transfer Venue (ECF Nos. 14, 17.) 1,2 Upon

1

On May 5, 2017, the above-captioned matter was consolidated for pretrial purposes only with:
Univest Capital, Inc. v. Asadi Transitions MHT LLC, et al., No. 17-CV-1193 (E.D. Pa. filed
March 17, 2017); Univest Capital, Inc. v. Baird Transitions MHT LLC, et al., No. 17-CV-1194
(E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Belay Transitions MHT LLC, et al., No.
l 7-CV-1195 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Bhagia Home Visits MHT
LLC, et al., No. 17-CV-1196 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Chon
Transitions MHT LLC, et al., No. l 7-CV-1197 (E.D. Pa. filed March 17, 2017); Univest Capital,
Inc. v. Cox Transitions MHT LLC, et al., No. l 7-CV-1198 (E.D. Pa. filed March 17, 2017);
Univest Capital, Inc. v. Dellavecchia Trancare MHT LLC, et al., No. l 7-CV-1199 (E.D. Pa. filed
March 17, 2017); Univest Capital, Inc. v. George MHT LLC, et al., No. l 7-CV-1200 (E.D. Pa.
filed March 17, 2017); Univest Capital, Inc. v. Hansen MHT LLC, et al., No. 17-CV-1201 (E.D.
Pa. filed March 17, 2017); Univest Capital, Inc. v. Hassan Transitions MHT LLC, et al., No. l 7CV-1202 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Knutson Transitions MHT
LLC, et al., No. l 7-CV-1203 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Naidu
MHT LLC, et al., No. l 7-CV-1204 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v.
Orendorff MHT LLC, et al., No. 17-CV-1205 (E.D. Pa. filed March 17, 2017); Univest Capital,
Inc. v. Pamganamamula MHT LLC, et al., No. l 7-CV-1206 (E.D. Pa. filed March 17, 2017);
Univest Capital, Inc. v. Peters Chronic MHT LLC, et al., No. 17-CV-1207 (E.D. Pa. filed March
17, 2017); Univest Capital, Inc. v. Sagel Transitions MHT LLC, et al., No. l 7-CV-1208 (E.D.
Pa. filed March 17, 2017); Univest Capital, Inc. v. Vadyala Transitions MHT LLC, et al., No. 17CV-1209 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Yu Home Visits MHT LLC, et
1

consideration of said Motions in conjunction with Plaintiff’s Response, this Court finds that it is
in the interests of justice to transfer this case (as well as all matters consolidated therewith) to the
United States District Court for the Northern District of Texas. Accordingly, Defendants’
Motions to Transfer Venue shall be granted.
II.

Background
This matter arises from contracts for loans Plaintiff entered into with individual doctors

and their guarantors. Said Defendants allegedly defaulted on the loans and are now claiming
insolvency. 3
Plaintiff, a business with its principal place of business in Bensalem, Pennsylvania and
incorporated in Pennsylvania, entered into these contracts with Defendants— none of whom
reside or conduct business in Pennsylvania. Instead, most of the defendants are located, or
conduct their business, in Texas. In fact, it is in Texas, where numerous Defendants in this case
have several class actions currently pending, all of which directly involve the underlying facts of
this case. 4 Subsequent to three of those lawsuits being filed, Plaintiff herein commenced twentysix law suits in this District, against the same parties. Because of the related nature of the Texas

al., No. l 7-CV-1210 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Zmans Chronic
MHT LLC, et al., No. l 7-CV-1211 (E.D. Pa. filed March 17, 2017); Univest Capital, Inc. v. Blair
Transitions MHT LLC, et al., No. 17-CV-1322 (E.D. Pa. filed March 24, 2017); Univest Capital,
Inc. v. Leos Home Visits MHT LLC, et al., No. l 7-CV-1323 (E.D. Pa. filed March 24, 2017);
Univest Capital, Inc. v. Chien Transitions MHT LLC, et al., No. 17-CV-1325 (E.D. Pa. filed
March 24, 2017); Univest Capital, Inc. v. Harralson Transitions MHT LLC, et al., No. l 7-CV1326 (E.D. Pa. filed March 24, 2017); Univest Capital, Inc. v. Frankenfeld Home Visits MHT
LLC, et al., No. 17-CV-1327 (E.D. Pa. filed March 24, 2017); Univest Capital, Inc. v. Datta
Transitions MHT LLC, et al., No. 17-CV-1328 (E.D. Pa. filed March 24, 2017).
2
Inasmuch as the same attorney is representing Defendant Akiode, as well as all Individual
Physician Defendants, she relies upon the language of the brief filed on behalf of the Individual
Physician Defendants (ECF No. 17) to support Akiode’s Motion (ECF No. 14).
3
See Suggestion of Bankruptcy (ECF No. 21).
4
Various Defendants in this case have also commenced litigation against Plaintiff in the Circuit
Court for the County of Kent in Michigan. (Indv. Defs.’ Br. Supp. Mot. Ex. B.)
2

lawsuits that were filed before the instant lawsuit was commenced and/or notice of same was
served upon all Defendants, United States District Judge Sam A. Lindsay of the Northern District
of Texas in Dallas determined that consolidation was appropriate and is currently presiding over
all such matters. (Indv. Defs.’ Br. Supp. Mot. Ex. F.)
III.

Standard of Review
“For the convenience of the parties and witnesses, in the interest of justice, a district court

may transfer any civil action to any other district or division where it might have been brought...”
28 U.S.C. § 1404(a). “Section 1404(a) transfers are discretionary determinations made for the
convenience of the parties and presuppose that the court has jurisdiction and that the case has
been made in the correct forum.” Lafferty v. Gito St. Riel, 495 F.3d 72, 76 (3d Cir. 2007). “The
burden of establishing the need for transfer . . . rests with the movant.” Jumara v. State Farm Ins.
Co., 55 F.3d 873, 879 (3d Cir. 1995). The court should consider the following factors when
weighing a request to transfer venue on the basis of convenience, including:
[T]he plaintiff’s forum preferences; Defendant’s preferences; whether the claim
arose elsewhere; the convenience of the parties as indicated by their relative
physical and financial conditions; the convenience of witnesses, but only to the
extent that the witnesses may actually be unavailable for trial in one of the fora,
and the location of books and records...[e]nforceability of judgment; practical
considerations that could make the trial easy, expeditious or inexpensive; the
relative administrative difficulty in the two fora resulting from court congestion,
the local interest in deciding local controversies at home, the public policies at the
fora, and the familiarity of trial judges with the state law for diversity cases.
Aamco Transmission Inc. v. Johnson, 641 F. Supp. 2d 464, 466 (E.D. Pa. 2009) (citing Jumara v.
State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)). “Whether to transfer a case is generally
committed to the discretion of the district courts.” In re United States, 273 F.3d 380, 387 (3d Cir.
1995).

3

IV.

Discussion

Under 28 U.S.C. § 1391(b), venue is proper in (1) “a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located;” (2)
“a judicial district in which a substantial part of the events or omissions giving rise to the claims
occurred,” or (3) “if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court’s personal
jurisdiction with respect to such action.” For purposes of § 1391(b), a corporate defendant
resides in “any judicial district in which such defendant is subject to the court’s personal
jurisdiction with respect to the civil action in question.” Id. § 1391(c)(2).
In support of maintaining the instant ligation in this District, Plaintiff relies upon the
Forum Selection Clause contained within the contracts signed by Defendants. Said Clause reads
in pertinent part as follows:
THIS IPA SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. YOU AGREE THAT ANY ACTION OR PROCEEDING TO WHICH WE ARE A PARTY
ARISING DIRECTLY OR INDIRECTLY FROM THIS IPA SHALL BE LITIGATED, AT OUR OPTION, IN ANY STATE OF FEDERAL COURT HAVING
SITUS WITHIN BUCKS COUNTY, PENNSYLVANIA AND THAT SAID COURT SHALL HAVE EXCLUSIVE JURISDICTION THEREOF. YOU
WAIVE ANY RIGHT TO A TRIAL BY JURY.

(Compl. Exs. A, B) (emphasis added). 5,6
The above clause provides Plaintiff with the option to litigate in Bucks County,
Pennsylvania, thereby rendering it “permissive.” See Synthes, Inc. v. Knapp, 978 F. Supp. 2d
450, 459-460 (E.D. Pa. Oct. 11, 2013) (“A permissive [forum selection clause] does not limit the
forum, but simply authorizes venue in a particular forum.”). As is the situation in this case,
“[b]ecause the language is not mandatory, we do not accord the provision significant weight” for

5

The font utilized in the contracts at issue appears to be no larger in size than that set forth
herein. Further, the Forum Selection Clause was presented in capitalized text in the originals.
6
Defendants argue that some of the alleged signatures on the IPAs were forgeries. For the
reasons set forth below, this Court need not reach said issue when conducting the instant
analysis.
4

purposes of considering whether a transfer of venue is appropriate. Synthes, Inc. v. Knapp, 978
F. Supp. 2d at 460.
Additionally, the Forum Selection Clause at issue provides in part that legal matters
arising between the contracting parties “shall be litigated, at [Plaintiff’s] option, in any state of
federal court having situs within Bucks County, Pennsylvania and that said court shall have
exclusive jurisdiction thereof.” (Compl. Exs. A, B) (emphasis added). Plaintiff commenced this
action in a court that does not have situs in Bucks County. As such, Plaintiff’s reliance on the
Clause to defeat Defendants’ request for a transfer of venue, is not dispositive of the issue, as
Plaintiff so suggests. Instead, Plaintiff’s forum choice is but one factor for this Court to consider
and again, is given less weight because of its permissive nature.
Notwithstanding the nature of the Forum Selection Clause, Plaintiff herein has selected a
forum in which “none of the operative facts giving rise to the suit occurred.” Cable v. Allied
Interstate, Inc., Civ. No. 12-96, 2012 U.S. Dist. LEXIS 67111, at *7 (E.D. Pa. May 11, 2012).
Courts are generally inclined to adjudicate actions in the district where the events giving rise to
the action occurred. See Cottman Transmissions Sys., Inc. v. Martino, 36 F.3d 291, 295 (3d Cir.
1994) (“The test for determining venue is not the defendant’s ‘contacts’ with a particular district,
but rather the location of those ‘events or omissions giving rise to the claim’...”). As such,
Plaintiff’s choice afforded less weight. Cable, 2012 U.S. Dist. LEXIS 67111, at *6.
Additionally—and perhaps most compelling here,
Where a related action is pending in another forum, the plaintiffs’ choice is
entitled to less deference. See QVC, 2012 U.S. Dist. LEXIS 108882, 2012 WL
3155471, at *4. Where the action would likely be consolidated with the related
action in the transferee district, transfer serves the interests of justice because it
avoids potential inconsistent results. 2012 U.S. Dist. LEXIS 108882, [WL] at *5;
see also Ferens v. John Deere Co., 494 U.S. 516, 531, 110 S. Ct. 1274, 108 L. Ed.
2d 443 (1990) (“To permit a situation in which two cases involving precisely the
same issues are simultaneously pending in different District Courts leads to the
5

wastefulness of time, energy and money that § 1404(a) was designed to prevent.”)
(quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 80 S. Ct.
1470, 4 L. Ed. 2d 1540 (1960)). The “presence of a related action in the transferee
forum is such a powerful reason to grant a transfer that courts do so even where
other Jumara factors, such as the convenience of the parties and witnesses, would
suggest the opposite.” Villari, 2009 U.S. Dist. LEXIS 54198, 2009 WL 1845236,
at *5 (citations omitted).
Synthes, 978 F. Supp. 2d at 459 (E.D. Pa. Oct. 11, 2013).
In light of the foregoing, the deference ordinarily afforded to a plaintiff’s chosen forum is
greatly diminished in this particular case.
With respect to the remaining factors, this Court is mindful that Defendants’ chosen
forum is ordinarily “entitled to considerably less weight than Plaintiff’s, as the purpose of a
venue transfer is not to shift inconvenience from one party to another.” EVCO Tech. & Dev. Co.
v. Precision Shooting Equip., Inc., 379 F. Supp. 2d 728, 730 (E.D. Pa. 2003). However,
Defendants’ preference, coupled with this Court’s findings regarding the first factor, weigh in
favor of transfer.
Next—and as briefly touched upon above— “[w]hen the vast majority of the acts giving
rise to plaintiff’s claims take place in another forum, that weighs heavily in favor of transfer.”
Hamilton v. Nochimson, Civ. No. 09-2196, 2009 U.S. Dist. LEXIS 62644, at *8 (E.D. Pa. July
21, 2009); see also Hayes v. Transcor America, LLC, Civ. No. 08-293, 2009 U.S. Dist. LEXIS
53074, at *15 (E.D. Pa. June 23, 2009) (holding that transfer was substantially favored because
“the vast majority of the acts or omissions giving rise to Plaintiff’s claims...occurred outside this
District.”). Again, none of the breach of contract claims at issue herein, arose in Pennsylvania.
Most of the Defendant Physicians reside in, and practice medicine in, Texas. The money loaned
by Plaintiff was for purposes of establishing new businesses located primarily in Texas and in
fact, none of the businesses were to be (or are) located in Pennsylvania. The contracts were not

6

executed in Pennsylvania and none of the alleged breaches occurred in Pennsylvania. Instead,
Plaintiff worked with representatives from America’s MHT, Inc. (“MHT”), who traveled to each
doctor’s location to market the Medical Home Team Services Program (“MHT Program”) and
execute the contract between Defendants and Plaintiff—the financial provider for the MHT
Program.
Moreover, because litigation involving the same core facts and many of the same parties
is already underway in Texas, it would be more convenient for the vast majority of those
involved, if this matter was to be litigated in Texas. Plaintiff—a corporation conducting business
throughout the United States—is already engaged (to varied extents) in litigation occurring
primarily in Texas. Conversely, Defendant Physicians work and live primarily in Texas and are
not engaged in any other litigation in Pennsylvania. As such, it would be financially inequitable
to require all the Defendants named in the twenty-six lawsuits consolidated herewith, to travel to
Pennsylvania to defend themselves.
Next, a court may consider the convenience of the witnesses insofar as a choice of forum
would cause a witness to be actually unavailable for trial. Jumara, 55 F.3d at 879. Although
Defendants have the burden of establishing who would be unavailable for trial, they have not
done so here. Instead, they cite to the cases pending in Texas to establish that “many of the same
parties” are involved therein. (Defs.’ Br. Supp. Mot. 22.) Since inconvenience is not tantamount
to unavailability, this factor does not weigh in favor of Defendants.
With respect to the location of books and records, Defendants do not specifically speak to
this issue, but again refer to the numerous other lawsuits pending in Texas. In light of Judge
Lindsay’s consolidation Order, 7 this Court can reasonably presume that most, if not all, relevant

7

Indv. Defs.’ Br. Supp. Mot. Ex. F.
7

books and records are located in Texas and could not be easily acquired and transported to
Pennsylvania.
As to the enforceability of any judgment, Plaintiff would suffer no prejudice by having
any potential judgment enforced in Texas. In fact, any judgment would be more easily
enforceable in that forum, as most of the defendants reside and/or conduct business in Texas,
while none do so in Pennsylvania.
Reaching the issue of practicality, Judge Lindsay is already presiding over the related
matters involving many of the same parties as this case, 8 thereby rendering transfer not only
practical, but a means by which to promote efficiency and reduce expenses for all involved.
Because Judge Lindsay currently has these other matters on his docket, any potential
administrative difficulties resulting from court congestion are minimal. At least one related
Texas case involves a RICO claim. An issue of fraud concerning potential forgeries involving
some of the same parties is being raised in this litigation. This controversy involves numerous
physicians who are licensed to practice medicine in Texas. Therefore, the local interest in
having this matter adjudicated in Texas would be far more compelling in that forum.
With respect to public policy, Texas presumably has a tremendous interest oversight of
the manner in which its physicians maintain and grow their practices. In this regard, it is also
presumable that said State would want to curtail potential fraud and corruption from being
committed by others conducting business within its borders. Because these issues are so directly
intertwined with the core facts presented in the Pennsylvania cases, public policy favors transfer.

8

See supra note 1.
8

Lastly, although the familiarity of the judges with applicable state law might not weigh
heavily in favor of transfer, this case involves basic contract law, which any judge on the federal
bench is presumed capable of applying to any given case.
Upon review of the foregoing factors, this Court finds it is in the interest of justice to
transfer this matter to the United States District Court for the Northern District of Texas. See
Hall v. Ski Shawnee, Inc., Civ. No. 06-275, 2006 U.S. Dist. LEXIS 72741, *9-11 (E.D. Pa. Oct.
4, 2006) (concluding transfer was appropriate to “the district where the accident occurred and the
contract was entered into, as well as the district in which Defendant is headquartered and
conducts business” because the “action has a stronger connection” to said district).
V.

Conclusion
For the reasons set forth above, Defendants’ Motions to Transfer shall be granted.
An appropriate Order follows.

BY THE COURT:

/s/ C. Darnell Jones, II

9

J.